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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
publish regulatory amendments governing the apprehension, inspection and admission, detention and removal, withholding of removal, and release of noncitizens encountered in the interior of the United States or at or between the U.S. ports of entry. INA 235, 236, 241, 8 U.S.C. 1225, 1226, 1231.
The HSA thus transferred to DHS
authority to adjudicate asylum applications, as well as the authority to conduct credible fear interviews and make credible fear determinations in the context of expedited removal. INA
235b1B, 8 U.S.C. 1225b1B; see also HSA 451b, 6 U.S.C. 271b providing for the transfer of adjudication of asylum and refugee applications from the Commissioner of Immigration and Naturalization to the Director of the Bureau of Citizenship and Immigration Services, now USCIS.
By operation of the HSA, the reference to Attorney General in the INA is understood also to encompass the Secretary in matters with respect to immigration proceedings before DHS.
That authority has been delegated within DHS to the Director of USCIS.
See 8 CFR 208.2a, 208.30.
In addition, under the HSA, the Attorney General retained authority over individual immigration adjudications including section 240
removal proceedings and certain adjudications related to asylum applications conducted within EOIR.
See HSA 1101a, 6 U.S.C. 521a; INA
103g, 8 U.S.C. 1103g. IJs within DOJ
continue to adjudicate all asylum applications filed by noncitizens during the pendency of removal proceedings, and they also review asylum applications referred by USCIS to the immigration court. See INA 101b4, 240a1, 8 U.S.C. 1101b4, 1229aa1; 8 CFR 1208.2b, 1240.1a.
Section 235b1Bii of the INA, 8
U.S.C. 1225b1Bii, provides that if a noncitizen in expedited removal proceedings is determined to have a credible fear of persecution by an asylum officer, the noncitizen is entitled to further consideration of the application for asylum. This proposed rule addresses how that further consideration will occur. Section 208d1 of the INA, 8 U.S.C.
1158d1, provides the Attorney General with the authority to establish procedures for the consideration of asylum applications, including those filed in accordance with section 235b of the INA, 8 U.S.C. 1225b. See INA
208a, 8 U.S.C. 1158a.
Section 103a1 and 3 of the INA, 8 U.S.C. 1103a1, 3, authorizes the Secretary to establish rules and regulations governing parole. Section
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212d5 of the INA, 8 U.S.C.
1182d5, vests in the Secretary the discretionary authority to grant parole to applicants for admission on a case-bycase basis.
C. The Current Asylum and Expedited Removal Process 1. Asylum The Refugee Act of 1980, Public Law 96212, 94 Stat. 102, was the first comprehensive legislation to establish the modern refugee and asylum system in the United States. Asylum is a discretionary benefit that can be granted by the Attorney General or the Secretary if a noncitizen establishes, among other things, that they have experienced past persecution or have a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA 208b1, 8 U.S.C.
1158b1 providing that the Attorney General may grant asylum to refugees; INA 101a42A, 8 U.S.C.
1101a42A defining refugee. As long as they retain their asylee status, noncitizens who are granted asylum 1
cannot be removed or returned to their country of nationality or last habitual residence, 2 receive employment authorization incident to their status, and 3 may be permitted to apply for readmission after travel outside of the United States with prior consent from the Secretary. INA 208c1, 8 U.S.C.
1158c1; see Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2286 2021
A grant of asylum permits an alien to remain in the United States and to apply for permanent residency after one year. internal quotation marks and citation omitted emphases omitted; 8
CFR 274a.12a5 employment authorization incident to asylum status;
id. 223.1b readmission after travel for a person who holds . . . asylum status pursuant to section 208 of the Act.
Asylum applications are presently classified based on the agency with jurisdiction over the noncitizens case. If a noncitizen is physically present in the United States, not detained, and not in removal proceedings, the noncitizen may file an asylum application with USCIS. These applications are known as affirmative filings. If the noncitizen is in removal proceedings before an IJ, the noncitizen instead may file an application for asylum with the IJ as a defense to removal. Such defensive filings are currently the only route by which noncitizens referred to an IJ by a USCIS asylum officer after receiving a positive credible fear determination can
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obtain an adjudication of the merits of their asylum claims.
Noncitizens who are ineligible for a grant of asylum, or who are denied asylum based on the Attorney Generals or the Secretarys discretion, nonetheless may qualify for other forms of protection. An application for asylum submitted by a noncitizen in removal proceedings is also considered an application for statutory withholding of removal under section 241b3 of the INA, 8 U.S.C. 1231b3. See 8 CFR
1208.3b, 1208.13c1. An IJ also may consider a noncitizens eligibility for withholding and deferral of removal under regulations issued pursuant to the implementing legislation regarding U.S.
obligations under Article 3 of the CAT.
Foreign Affairs Reform and Restructuring Act of 1998, Public Law 105277, div. G, sec. 2242b, 112 Stat.
2681761, 2681822 codified at 8
U.S.C. 1231 note 1999; 8 CFR
1208.3b, 1208.13c1; see also id.
1208.16c, 1208.17.
Withholding and deferral of removal bar a noncitizens removal to any country where the noncitizen would more likely than not face persecution or torture, meaning that the noncitizen would face a clear probability that their life or freedom would be threatened because of a protected ground or a clear probability of torture. 8 CFR
1208.16b2, c2. Thus, if a noncitizen proves that it is more likely than not that the noncitizens life or freedom would be threatened on account of a protected ground, but is denied asylum for some other reason for instance, because of a statutory exception, an eligibility bar adopted by regulation, or a discretionary denial of asylumthe noncitizen nonetheless may be entitled to statutory withholding of removal if not otherwise barred from that form of protection. INA
241b3A, 8 U.S.C. 1231b3A; 8
CFR 208.16, 1208.16. Likewise, a noncitizen who establishes that he or she more likely than not will face torture in the country of removal will qualify for CAT protection. See 8 CFR
208.16c, 208.17a, 1208.16c, 1208.17a. In contrast to the more generous benefits available through asylum, statutory withholding and CAT
protection do not: 1 Prohibit the Government from removing the noncitizen to a third country where the noncitizen would not face the requisite likelihood of persecution or torture even in the absence of an agreement with that third country; 2 create a path to lawful permanent resident status; or 3 afford the same ancillary benefits, such as derivative protection for family members. See, e.g., Guzman
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